Justices deal Bush setback on tribunals

High court says Guantanamo action illegal

By Charlie Savage, Globe Staff | June 30, 2006

WASHINGTON -- The Supreme Court yesterday delivered a sweeping rebuke to President Bush's policies for handling prisoners captured in the war on terrorism, ruling that the administration's system for trying Guantanamo detainees for war crimes before a military commission is illegal.

In one of the most important rulings on presidential powers after Sept. 11, 2001, the court voted, 5 to 3, to shut down the military commission that has been trying Salim Hamdan, a Yemeni held at Guantanamo who is accused of being a bodyguard and driver for Al Qaeda leader Osama bin Laden.

The court said the commission Bush established to try prisoners on terrorism charges does not meet the standards of fairness required by the military code of justice and the Geneva Conventions and is thus illegal.

``In undertaking to try Hamdan and subject him to criminal punishment, the executive is bound to comply with the rule of law," Justice John Paul Stevens wrote for the majority.

Bush had sought to limit the rights given to the detainees, saying that as president in a time of war he could handle such cases as he saw fit. He established the commissions by executive order in November 2001 without consulting Congress.

Legal specialists said the impact of the ruling could go far beyond the fate of Hamdan and nine other Guantanamo detainees who were facing charges before the military commission, under which prosecutors could use secret evidence against defendants and exclude them from attending parts of their own trials. The commission had yet to render a verdict in any case.

In ruling that Bush exceeded his authority when he bypassed the military code of justice to set up the commission, the court repudiated assertions by Bush's legal team that, as commander in chief, the president is not bound to obey laws and treaties that restrict his ability to fight terrorism.

``Today's opinion is a stunning rebuke to the extreme theory of executive power that has been put forward for the last five years," said Harold Koh , dean of Yale Law School. ``It is a reminder that checks and balances continue to be a necessary and vibrant principle, even in the war on terror."

The ruling means that if Bush wants to try Guantanamo prisoners, he has to give them ordinary courts-martial and the rights available to defendants under military law -- allowing them to see the evidence against them, challenge evidence, and appeal any conviction to a civilian court.

While the Supreme Court said Bush could not, on his own authority, set up an alternative justice system, it said he could ask Congress to pass a law establishing military commissions. The new commissions, however, would have to give defendants enough due process rights to meet the requirements of American law.

``Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Justice Stephen Breyer wrote in a concurring opinion.

Speaking to reporters shortly after the court handed down the decision, Bush said he would take the court's findings ``very seriously" and that he was considering asking Congress to pass a commissions law.

``I want to find a way forward," Bush said. `` We've got people looking at [the decision] right now to determine how we can work with Congress, if that's available to solve the problem."

Lindsey Graham of South Carolina and Jon Kyl of Arizona, Republicans on the Judiciary Committee, said they would introduce legislation to reestablish some form of military commissions.

``We intend to pursue legislation in the Senate granting the executive branch the authority to ensure that terrorists can be tried by competent military commissions," Graham and Kyl said in a statement. ``Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."

Senate majority leader Bill Frist, Republican of Tennessee, also said he would make the passage of new military commissions law a top priority.

Joining Stevens and Breyer in striking down Bush's military commissions were Justices Anthony Kennedy, Ruth Bader Ginsburg, and David Souter.

Justices Clarence Thomas, Antonin Scalia, and Samuel Alito dissented, saying that the Supreme Court should have thrown out the case. Thomas also said the ruling ``would sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Chief Justice John Roberts took no part in the decision because he had voted to uphold Bush's military commissions last year, at an earlier stage in the case, when Roberts was a federal appeals court judge.

While striking down the military commissions, the court made clear that the administration can continue to hold detainees such as Hamdan indefinitely as ``enemy combatants."

But some legal specialists said the roadblock to military commissions could be just the beginning of the impact of yesterday's ruling. The decision could also be interpreted as saying that the Supreme Court believes that some coercive interrogation techniques approved by the CIA are not permissible under the Geneva Conventions, they said.

The majority opinion said the United States is bound by a provision of the Geneva Conventions that guarantees fair trials to all people captured in an armed conflict. The same provision also outlaws ``cruel treatment, torture [and] outrages upon personal dignity, in particular, humiliating and degrading treatment."

``Focusing just on the commissions aspect of this misses the forest for the trees," said Martin Lederman, a Georgetown law professor and former Justice Department official. ``This ruling means that what the CIA and the Pentagon have been doing is, as of now, a war crime, which means that it should stop immediately."

But David Rivkin, a former associate White House counsel in the George H. W. Bush administration, rejected that contention. He said it is not clear that five members of the court believe the Geneva Conventions should bind the US government, noting that only four justices joined the part of the decision that cited the treaty. Kennedy cited only the role of congressional statutes in saying the commissions were illegal.

Rivkin also said the ruling was not a complete loss for the White House. He focused on the fact that the court said some form of military commissions would be acceptable, so long as Congress signs off on them.

``Every single justice said they considered military commissions to be a legitimate means of trying terrorists," Rivkin said.

But lawyers representing the detainees called the ruling a huge victory, expressing relief that the court did not agree with the administration's argument that detainee lawsuits should be thrown out. And human rights groups called the decision a win for individual rights and the rule of law.

``I think that the language in here is really quite clear and unequivocal," said Elisa Massamino of Human Rights First. ``This is really a civics lesson. Here the court is playing the role the founding fathers intended it to play -- both checking executive power and also reminding the president of the role of Congress."